The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Thursday, July 07, 2016

11th Circuit issues 3 judge concurrence

This opinion is interesting. Judges Jordan, Rosenbaum, and Jill Pryor denied a motion for a second habeas petition based on existing law in the 11th Circuit (which is way out of whack with the rest of the circuits). But then they issued a 3-judge concurrence saying that the existing law is wrong. From their joint concurrence:

Although the mandatory Sentencing Guidelines operated to cabin the discretion of judges, just like sentencing statutes passed by Congress, a panel of our Court recently held that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), as unconstitutionally vague, does not apply to the identical residual clause of the mandatory career offender guideline, U.S.S.G. § 4B1.2(a)(2) (2003). See In re Griffin, No. 16-12012, __ F.3d __, 2016 WL 3002293 (11th Cir. May 25, 2016). The Griffin panel also concluded that, even if Johnson did apply to the residual clause of the mandatory career offender guideline, the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257 (2016)—which held that Johnson was retroactive to cases on collateral review—did not make Johnson retroactive in cases involving challenges to the Sentencing Guidelines. Although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.

3 comments:

Anonymous
said...

The 11th Cir. (well, the right wing of the 11th Cir.) is so out touch with not only the entire federal judiciary, but with basic notions of fairness and justice, that it has completely embarrassed the court as a whole.

By definition, there is no such thing as a majority, much less a unanimous, concurrence. That essay is either the rationale for the holding or obiter dicta. Since we can assume that these judges know what a "concurrence" is, the question is, why deliberately mislabel this writing in a way guaranteed to draw maximal attention to it? The sub-text may be an awakening to the fact that the court has fetishized the superfluous and redundantly named "prior precedent" rule to the point where the first opinion on an issue is treated as legislation rather than as a precedent. The reach of a precedent in a common-law system is limited by the case's facts and the judges' analysis, subject to revision under different facts or a more complete analysis. Given that, what need is there for a "rule"? If the first panel is convincing, its opinion controls. Why should an unconvincing opinion control? The first-panel-makes-law rule is harmful to litigants. It encourages judges to overreach the facts and the law so as to "bind" the whole court (the way Matchett did). In that way, later litigants are "bound" by the first brief on an issue, even if it was not very well researched or presented. Hopefully, this writing is a sign that this insidious and unnecessary rule's days are numbered.

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.